Citation Nr: 0633129
Decision Date: 10/26/06 Archive Date: 11/14/06
DOCKET NO. 04-20 602 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida
THE ISSUE
Whether new and material evidence to reopen a claim for
service connection for cervical radiculitis with headaches
has been received.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Counsel
INTRODUCTION
The veteran served on active duty for over 20 years from July
1951 to July 1971.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a November 2002 decision of the RO that denied
service connection for headaches and for neck pain. The
veteran timely appealed.
In its statement of the case (SOC), the RO announced that new
and material evidence had not been submitted to reopen the
claim of service connection for cervical radiculitis with
headaches. However, the requirement of submitting new and
material evidence to reopen a claim is a material legal issue
the Board is required to address on appeal despite the RO's
action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir.
2001); Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir.
1996). As such, the issue is captioned as above.
The veteran was previously represented by a different service
organization. In March 2005, the veteran submitted a VA Form
21-22 (Appointment of Veterans Service Organization as
Claimant's Representative), listing the VFW as his
representative.
The veteran canceled a hearing before a Veterans Law Judge in
Washington, D.C., that was scheduled for March 18, 2005. In
September 2006, the veteran's representative waived initial
RO consideration of any additional evidence submitted by the
veteran.
Statements made by the veteran in April 2004 and in May 2006
could be construed as raising the matters of service
connection for depression, skin cancer, prostate problems,
and a respiratory disorder. Those matters have not been
developed for appellate review and are referred to the RO for
appropriate action.
FINDINGS OF FACT
1. In July 1972, the Board denied service connection for
cervical radiculitis with headaches.
2. In June 1975, the RO denied service connection for
cervical radiculitis with headaches, claimed as secondary to
service-connected gouty arthritis; the veteran did not submit
a notice of disagreement within one year of the notice of
that decision.
3. Evidence associated with the claims file since the
Board's denial in July 1972 and the RO's denial in June 1975,
when considered by itself or in connection with evidence
previously assembled, relates to an unestablished fact
necessary to substantiate the claim for service connection
for cervical radiculitis with headaches, but does not create
a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The Board's July 1972 decision denying the veteran's
claim for service connection for cervical radiculitis with
headaches is final. 38 U.S.C. 4004 (1970); 38 C.F.R.
§ 19.104 (1972); currently 38 U.S.C.A. § 7104 (West 2002);
38 C.F.R. § 20.1100 (2006).
2. The RO's decision in June 1975, denying service
connection for cervical radiculitis with headaches as
secondary to service-connected gouty arthritis, is final.
38 U.S.C. § 4005 (1970); 38 C.F.R. §§ 3.104, 19.108, 19.118,
19.153 (1974); currently 38 U.S.C.A. § 7105 (West 2002); 38
C.F.R. §§ 3.104(a), 20.302, 20.1103 (2006).
3. The evidence received since the Board's July 1972 denial
and the RO's June 1975 denial is not new and material, and
the claim for service connection for cervical radiculitis
with headaches is not reopened. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. § 3.156(a) (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2006).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (Court) held that
proper VCAA notice should notify the veteran of: (1) the
evidence that is needed to substantiate the claim(s); (2) the
evidence, if any, to be obtained by VA; (3) the evidence, if
any, to be provided by the claimant; and (4) a request by VA
that the claimant provide any evidence in the claimant's
possession that pertains to the claim(s).
Through July 2002, March 2003, and October 2003 letters, the
RO notified the veteran of elements of service connection,
and the evidence needed to establish each element. These
documents served to provide notice of the information and
evidence needed to substantiate the claim.
VA's letters notified the veteran of what evidence he was
responsible for obtaining, and what evidence VA would
undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b). VA informed him that it would make reasonable
efforts to help him get evidence necessary to support his
claim, particularly, medical records, if he gave VA enough
information about such records so that VA could request them
from the person or agency that had them. The letters
requested that he provide the names and addresses of medical
providers, the time frame covered by the records, and the
condition for which he was treated, and notified him that VA
would request such records on his behalf if he signed a
release authorizing it to request them.
Each of the letters asked him if he had any additional
evidence to submit, and thereby put him on notice to submit
information or evidence in his possession.
Notice to a claimant pursuant to the VCAA should be provided
prior to the initial adverse decision. Mayfield v.
Nicholson, 444 F.3d 1328 (2006).
Some of the documents meeting the VCAA's notice requirements
were provided to the veteran after the rating action on
appeal. The timing deficiency was remedied by the fact that
the veteran's claim was re-adjudicated by the agency of
original jurisdiction after notice was provided. Mayfield v.
Nicholson, 444 F.3d 1328 (2006).
The Court has also held that the VCAA notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service connection claim. Those five
elements include: 1) veteran status; 2) existence of a
disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability. Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006).
The Court held that upon receipt of an application for a
service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Id.
Additionally, this notice must inform a claimant that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
The veteran was not provided with notice of the type of
evidence necessary to establish a disability rating or to
assign an effective date for the disability on appeal. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the veteran has been prejudiced thereby). The Board
finds no prejudice to the veteran in proceeding with a denial
of the claim, as concluded below, because any question as to
the appropriate disability rating and effective date to be
assigned is rendered moot. He had previously received all
required notice regarding service connection. A claim that
is denied, obviously, does not entail the setting of a
disability rating or an effective date. Accordingly, the
veteran is not harmed by any defect with regard to these
elements of the notice.
VCAA notice in a new and material evidence claim (1) must
notify a claimant of the evidence and information that is
necessary to reopen the claim and (2) must notify the
claimant of the evidence and information that is necessary to
establish entitlement to the underlying benefit sought by the
claimant.
The VCAA requires, in the context of a claim to reopen, that
VA look at the bases for the denial in the prior decision and
to respond with a notice letter that describes what evidence
would be necessary to substantiate that element or elements
required to establish service connection that were found
insufficient in the previous denial. Therefore, the question
of what constitutes material evidence to reopen a claim for
service connection depends on the basis on which the prior
claim was denied. Failure to provide this notice is
generally prejudicial. Kent v. Nicholson, 20 Vet. App. 1
(2006).
The May 2003 letter and February 2004 SOC notified the
veteran that his previous claim for service connection for
cervical radiculitis with headaches had been denied by rating
actions in November 1971 and March 1972, and by a Board
decision in July 1972. The basis for the denial was a
finding that the disability was unrelated to military
service. The RO told him that once a claim had been finally
disallowed, new and material evidence was required for
reopening, and also told him what constituted new evidence
and what constituted material evidence. These documents
satisfied the notice requirements of Kent.
The Board finds that there is no indication that any
additional action is needed to comply with the duty to assist
the veteran. The RO has obtained copies of the veteran's
service medical records and outpatient treatment records.
The veteran has not identified, and the record does not
otherwise indicate, any existing pertinent evidence that has
not been obtained.
The veteran is not entitled to an examination prior to
submission of new and material evidence. 38 C.F.R.
§ 3.159(c)(4)(iii) (2006).
Given these facts, it appears that all available records have
been obtained.
There is no further assistance that would be reasonably
likely to assist the veteran in substantiating the claim.
38 U.S.C.A. § 5103A(a)(2).
II. Petition to Reopen
The veteran's original claim for service connection for
cervical radiculitis with headaches was denied by the RO in
November 1971. In March 1972, the RO confirmed its denial.
Subsequently, in July 1972, the Board denied service
connection based on findings that cervical radiculitis with
headaches was not present at the time of separation from
service in December 1970, and that disabilities of the
cervical spine and neurological system were not diagnosed
upon recent VA examination.
The Board also notes that, in June 1975, the RO denied
service connection for cervical radiculitis, claimed as
secondary to gouty arthritis, on the basis that it was
medically unfeasible.
Evidence of record at the time of the Board's decision in
July 1972 and the RO's decision in June 1975 included the
veteran's service medical records; service personnel records;
and the report of an October 1971 examination, diagnosing
cephalgia by history, cause undetermined.
The service medical records show various complaints of neck
pain, and include a questionable diagnosis of cervical
arthritis in December 1969; an assessment of nerve root C-6
irritation in March 1970; a diagnosis of cervical muscle
spasm in November 1971; treatment for cervical spondylosis,
with radiation to left arm, and complaints of recurring
headaches in December 1970 and in January 1971. At the time
of the veteran's retirement examination in December 1970, the
examiner noted painful hands, cervical spine, and lumbar
spine. No disability of the cervical spine was noted.
Based on this evidence, the Board concluded that the evidence
failed to establish a cervical disorder at the time of
separation from service or on recent examination; and that
the veteran did not have cervical radiculitis with headaches
resulting from a disease or injury incurred in or aggravated
by service. The Board's July 1972 decision is final. See 38
U.S.C. 4004 (1970); 38 C.F.R. § 19.104 (1972); currently
38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2006).
In June 1975, the RO concluded that it was not medically
feasible to hold cervical radiculitis with headaches, if
existent, as secondary to gouty arthritis. The veteran was
informed that the RO had found that the veteran's claimed
cervical radiculitis with headaches was not shown by the
evidence of record.
As there was no timely appeal, the RO's June 1975 denial of
secondary service connection is final. See 38 U.S.C. § 4005
(1970); 38 C.F.R. §§ 3.104, 19.108, 19.118, 19.153 (1974);
currently 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§§ 3.104(a), 20.302, 20.1103 (2006).
The present claim was initiated by the veteran in February
2002. VA may reopen and review a claim that has been
previously denied if new and material evidence is submitted
by or on behalf of the veteran. 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356
(Fed. Cir. 1998).
Under 38 C.F.R. § 3.156(a), "new evidence" is existing
evidence not previously submitted; "material evidence" is
existing evidence that, by itself or when considered with
previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim. Furthermore, new and
material evidence is "neither cumulative nor redundant" of
evidence of record at the time of the last prior final
denial, and must "raise a reasonable possibility of
substantiating the claim." 38 C.F.R. § 3.156(a).
New evidence will be presumed credible solely for the purpose
of determining whether the claim has been reopened. Justus
v. Principi, 3 Vet. App. 510, 513 (1992).
Evidence added to the record since June 1975 includes
duplicate copies of service medical records; private
treatment records showing diagnoses in September 1999 of
mechanical low back syndrome, left-sided S1 radiculopathy,
degenerative joint disease of the left hip, and limb length
discrepancy; outpatient records of acute and chronic active
problem file definitions, showing no complaints of headache
in December 2000, April 2001, and May 2002; an MRI scan of
the brain in September 2003; the report of a
neuropsychological consultation in October 2003; a letter
from a VA physician in April 2004, suggesting some
preventative headache medicines; private treatment records in
February 2006 in consultation for abnormal PET computed
tomography findings of the neck, chest, abdomen, and pelvis;
and various statements from the veteran that he still had
neck pain and arthritis in his neck.
During the October 2003 neuropsychological consultation by
Giles D. Rainwater, Ph.D., the veteran did not report any
headaches, back, or neck problems.
Other than for the duplicate service medical records, much of
this evidence is new in that it was not previously of record
and is not cumulative. However, none of the evidence
received is pertinent to the central questions underlying the
claim for service connection-i.e., whether the veteran
currently has cervical radiculitis with headaches, and if so,
whether there is a nexus between that disability and service.
The medical evidence received primarily pertains to other
disabilities. Dr. Rainwater also neither listed any cervical
disability nor had documented any headaches while noting the
veteran's medical history.
An April 2004 letter by a VA physician suggests that the
veteran should take preventive medicines for headaches.
However, this report does not associate the headaches to
cervical radiculitis and provides no nexus between current
disability and service. Hence, the evidence does not create
a reasonable possibility of substantiating the claim and,
thus, is not material.
In fact, there is no competent evidence linking the currently
claimed cervical radiculitis and headaches with service, or
to any service-connected disability. The veteran has offered
statements and contentions in which he argued that he
continued to have neck pain, or that his service-connected
gouty arthritis had caused his cervical radiculitis with
headaches. The veteran, as a lay person, would not be
competent to diagnose a disability or to render a probative
opinion on a medical matter, such as the etiology of any
cervical disability. See Bostain, 11 Vet. App. 124, 127
(1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a
layperson is generally not capable of opining on matters
requiring medical knowledge").
Absent evidence of a current disability, or of a nexus
between the currently claimed cervical radiculitis with
headaches and a service-connected disability or service, the
newly received evidence does not raise a reasonable
possibility of substantiating the claim. As new and material
evidence has not been received, the claim for service
connection for cervical radiculitis with headaches is not
reopened.
ORDER
New and material evidence has not been received; the claim
for service connection for cervical radiculitis with
headaches is not reopened.
____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs